The ICTY through its judgments has contributed to the development of the jurisprudence of international criminal law system. The tribunal has helped to clarify certain legal principles and is spearheading the shift from impunity to accountability by holding individuals accountable regardless of their position. On May 24, 1999, the ICTY made history as the first international criminal tribunal to indict a serving Head of State, former Yugoslav President Slobodan Milosevic, for violations of the laws and customs of
50
ICTFY Statute, supra note 39, art.11.
51 Id., art. 12.
52 Id., art. 12(1) and 13(bis). 53 Id., arts. 16 - 20.
54
Id., art. 18; Patricia Wald, supra note 38, at 100 (quoting ICTY Rule of Procedure and Evidence 47, U.N. Doc. IT/32 (1994)).
87
war and crimes against humanity committed against the Kosovo Albanian population in 1998-99.56
The tribunal’s high point has been the arrest and well-publicized transfer of Milosevic to the Detention Unit at The Hague on June 29, 2001, for prosecution by the ICTY for his role in the atrocities committed by Serbian forces during the Kosovo conflict. Milosevic is charged with the murder of 900 Kosovo-Albanians and the deportation of 740,000 more. Since then he has also been separately indicted for grave breaches of the Geneva Conventions, violations of the laws or customs of war and crimes against humanity committed against the Croatian and other non-Serb populations in the Republic of Croatia. In addition, Milosevic is also charged with genocide and complicity in genocide during the war in Bosnia and Herzegovina.57
As at March 3, 2006, of about 161 persons were indicted by the tribunal for violations of international humanitarian law committed in the territory of the former Yugoslavia, 133 have appeared in proceedings before the ICTFY.58 Of this number, 40 have been found guilty, 44 accused persons are at pre-trial stage, 9 accused persons are currently at trial, and 48 of the accused are currently in custody at the Tribunal’s detention unit.59
Despite the achievements recorded by the ICTY, the tribunal has been criticized for its slow progress and for the fact that some of the highest ranking government
56 See Prosecutor v. Slobodan Milosevic, et al., Case No. IT-99-37, May 24, 1999, available at:
http://www.un.org/icty/cases-e/index-e.htm.
57 See Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, April 21 and July 28, 2004; Prosecutor v.
Slobodan Milosevic, Case No. IT-99-37-PT, May 24, 1999, available at: http://www.un.org/icty/cases-
e/index-e.htm.
58
See ICTY at a Glance, Key Figures, available at: http://www.un.org/icty/glance-e/index.htm. (visited March 10, 2006) [hereinafter ICTY at a Glance].
officials indicted by the tribunal have yet to be taken into custody.60 The ICTY judges were all elected by November 1993 with Antonio Cassese, an Italian professor of international law, as its first President.61 However, it was not until July 1994 that Judge Richard Goldstone of South African was elected the first Chief Prosecutor of the ICTY.62 While the appointment of the officers of the tribunal was completed in July 1994, the ICTFY did not start sitting until November 1994 when it held its first public hearing.63 Apart from structural shortcomings, the delay may not be unconnected with the tribunal’s financial reliance on the United Nations.64 Also, as noted by the former ICTY Prosecutor Louise Arbour, the ICTY’s limitations are based, in part, on the uncertain and developing nature of international criminal law.65
60 Human Rights Watch, Human Rights News, Progress on War Crimes Accountability, the Rule of Law,
and Minority Rights in Serbia and Montenegro, HRW Statement to the U.S. Commission on Security and Cooperation in Europe (June 4, 2003), at
http://www.hrw.org/backgrounder/eca/serbiatestimony060403.htm (last visited Oct. 30, 2004) (stating: “The past year has seen continued stutter-step progress toward cooperation with the ICTY and
accountability for war-time atrocities. Still missing is the clear political leadership to ensure that all those responsible for war crimes are held accountable”).
61 Id. at 148. The current president is Fausto Pocar of Italy. See ICTY at a Glance, supra note 58, at
Organs of the Tribunal.
62 See INSIDER’S GUIDE, supra note 4, at 161-63 (suggesting that the embarrassing delay was occasioned
by the interest shown by different states to have their nationals appointed for the job). Even though the ICTY Statute provided that the Prosecutor shall serve for a four year term, there has been two change of guards within five years. On October 1, 1996, Judge Louise Arbour of Canada succeeded Judge Goldstone. On September 15, 1999, Carla Del Ponte, former Switzerland’s attorney general and chief federal
prosecutor, who was unanimously approved by the U.N Security Council in the summer of 1999 succeeded Judge Arbour.
63
Lawyers Committee for Human Rights, PROSECUTING WAR CRIMES IN THE FORMER
YUGOSLAVIA - THE INTERNATIONAL TRIBUNAL, NATIONAL COURTS AND CONCURRENT JURISDICTION: A GUIDE TO APPLICABLE INTERNATIONAL LAW, NATIONAL LEGISLATION AND ITS RELATION TO INTERNATIONAL HUMAN RIGHTS STANDARDS iii (May 1995) [hereinafter Prosecuting War Crimes in the Former Yugoslavia].
64 ICTY Statute, supra note 39, art. 32 which provides that the UN is obligated to fund the tribunal. Id. See
also Craig Topper, And Justice for All? An Ad Hoc Tribunal for the Former Yugoslavia, 8 N. Y. INT’L L. REV. 48 (1995); See Lawyers Committee for Human Rights, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 33 (April 1995) [hereinafter “Criminal Tribunal in Yugoslavia] (noting the inability of the UN to appropriate funds for the tribunal thereby compelling the UN Secretary General to allocate money without the proper appropriations processes). Id.
65 Jordan J. Paust, Book Review, 96 AM J. INT’L L. 1006 (2002) (reviewing SUBSTANTIVE AND
PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW: THE EXPERIENCE OF THE INTERNATIONAL AND NATIONAL COURTS (Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., 2000)).
89
Furthermore, the difficulties in surrendering indictees and other forms of non- cooperation of national authorities remain one of the major obstacles to the fulfillment of the Tribunal’s mandate of trying key figures in the conflict in former Yugoslavia.66 As at March 3, 2006, 6 arrest warrants have been issued against accused persons that are currently at large including former Bosnian Serb leader Radovan Karadzic and former Bosnian Serb army commander General Ratko Mladic.67
However, it should be noted that the ICTY depends on the cooperation of UN member States to arrest indictees and gain access to evidence.68 UN member States have not shown demonstrable enthusiasm in tracking down suspects. In some cases, States have explicitly refused to cooperate.69 Unfortunately, there is no established independent enforcement mechanism by which the ICTY Prosecutor can rely to bring apprehend indictees. Short of imposing economic or other sanctions, a course of action that is unlikely, the United Nations cannot force compliance by a recalcitrant State. Thus, the tribunal’s greatest failure has been its inability to apprehend major suspects and bring them to trial. Given the fact that the tribunal cannot try a suspect in absentia,70 some commentators have suggested that shaming through identification could turn indicted war
66
See Address to the United Nations Security Council by the Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, Ms. Carla Del Ponte, 27 November 2001,
http://www.ictr.org/ ENGLISH/speeches/delponte271101sc.htm.
67 Others include Stojan Zupljanin, Vlastimir Djordjevic, Goran Hadzic, and Zdravko Tolimir. See ICTY
at a Glance, supra note 58, at Key Figures.
68 ICTY Statute, supra note 39, art. 29.
69 Croatia Defies Tribunal, Independent (London), Feb. 20, 1997, available in LEXIS, News Library,
CURNWS File (stating that Croatia recently refused to turn over information on suspects). See also Christopher C. Joyner, Strengthening Enforcement of Humanitarian Law: Reflections on the International Criminal Tribunal for the Former Yugoslavia, 6 DUKE J. COMP. & INT’L L. 79 (1995); Jeri Laber & Ivana Nizich, The War Crimes Tribunal for the Former Yugoslavia: Problems and Prospects, 18 FLETCHER F. OF WORLD AFF. 7 (1994).
70
ICTY Statute, supra note 39, art. 20. Article 20 require an accused person to be in custody before the commencement of a trial. Id. See also Ruth Wedgewood, War Crimes: Bosnia and Beyond,
criminals into pariahs and deprive them of the freedom of movement.71 On the other hand, the better approach is for the international community to take the step from having established international accountability mechanisms to endowing them with enforcement capacity.
Another recent development that threatens the credibility of the Tribunal is the deaths of Milan Babic and Slobodan Milosevic. On 5 March, 2006, Milan Babic, the Serb nationalist war criminal who pleaded guilty on January 27, 2004, and testified against Slobodan Milosevic, was found dead in his prison cell at the United Nations Detention Unit in Scheveningen. After conducting an investigation, Mr. Babic was presumed to have committed suicide.72 On, March 11, 2006, Slobodan Milosevic was found dead in his cell at the U.N. Detention Unit in Scheveningen. The circumstances surrounding his death are still uncertain.73
The death of Mr. Milosevic before the completion of his trial is a profound disappointment which calls to question the credibility of the Tribunal.74 Mr. Milosevic’s
71
Payam Akhavan, Enforcement of the Genocide Convention: A Challenge to Civilization, 8 HARV. HUM. RTS. J. 229, 243-44 (1995). See U.N. SCOR, 48th Sess., 3217th mtg. at 13, U.N. Doc. S/PV.3217 (1993) (Madeleine Albright, then US ambassador to the UN, declaring that war crimes suspects will become international pariahs and prisoners in their own lands - Serbia, Bosnia, and Croatia - even if their own states do not hand them over for trial). See also War Criminals to Become International Pariahs, Agence France Presse, May 26, 1993, available in LEXIS, News Library, ARCNWS File.
72 Press Release, Milan Babic Found Dead in Detention Unit, The Hague, AM/MOW/1046e, March 6,
2006, available at http://www.un.org/icty/pressreal/2006/p1046-e.htm (visited March 12, 2006).
73
Press Release, Slobodan Milosevic Found Dead in His Cell at the Detention Unit The Hague,
CC/MOW/1050ef, March 11, 2006, available at: http://www.un.org/icty/pressreal/2006/p1050-e.htm
74 See Jon Silverman, Worst Outcome for Milosevic Tribunal
, 11 March 2006, available at:
http://news.bbc.co.uk/2/hi/europe/4797696.stm (visited March 12, 2006) (Mr. Silverman, BBC Legal
Affairs Analyst, suggesting that Mr. Milosevic’s death raises questions which may tarnish the reputation of the International Criminal Tribunal for Yugoslavia (ICTY) and undermine confidence in war crimes justice generally).
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death forecloses the opportunity for victims and their families to have a final answer in this case on his criminal responsibility.75
The tribunal is expected to complete its sitting by 2008.76 The completion strategy is predicated on ICTY focusing on trials involving “the highest-ranking political, military, paramilitary and civilian leaders and . . . referring certain cases to national courts.”77 Pursuant to the strategy, the ICTY must complete its investigations by the end of 2004, and all trials and appeals must be completed by December 31, 2008. Thus, ICTY need to focus its efforts towards the trial of senior perpetrators while strengthening the local courts so that they are in a position to assume responsibility for trying relatively minor offenders.78 However, the courts in the former Yugoslavia, including the war crimes chamber of the State Court of BiH are not yet in a position to assume responsibility for trying large numbers of cases.79
The ICTY is expected to adhere to its completion strategy, notwithstanding any judicial and practical challenges that may arise in fulfilling them as it is unlikely that the Security Council will extend the deadline. For the common strategy to work, it would be
75
See Statement of the President of the Tribunal, The Hague, March 12, 2006, available at
http://www.un.org/icty/pressreal/2006/speech/poc- 060312e.htm (visited March 12, 2006).
76 ICTY President Claude Jorda submitted the ICTY completion strategy on June 10, 2002. Report on the
Judicial Status of the International Criminal Tribunal for the Former Yugoslavia and the Prospects for Referring Certain Cases to National Courts, UN Doc. S/2002/678 (2002) enclosure [hereinafter Jorda Report]. On February 23, 2003, Judge Theodor Meron was elected president of the ICTY. Judge Theodor Meron and Judge Fausto Pocar Elected as President and Vice-President Respectively, ICTY Press Release CC/PIS/735-e (Feb. 27, 2003). See also the remarks delivered by ICTY president Meron and ICTY prosecutor Carla Del Ponte, respectively, to the Security Council on October 9, 2003. UN Doc. S/PV.4838, at 3-7, 9-13 (2003) [hereinafter Meron Speech and Del Ponte], also available as Statement of Judge Theodor Meron to the United Nations Security Council, ICTY Press Release JL/P.I.S./788-e (Oct. 9, 2003), and Address by Ms. Carla Del Ponte to the United Nations Security Council, ICTY Press Release
FH/PIS/791-e (Oct. 10, 2003). ICTY press releases are available at the ICTY Website, <http://www.un.org/icty>.
77 Judge Claude Jorda, Address to the United Nations Security Council, ICTY Press Release JDH/PIS/690-
e, at 1 (July 23, 2002).
78
Daryl A. Mundis, Note and Comment: The Judicial Effects of the “Completion Strategies” on the ad hoc International Criminal Tribunals, 99 AM. J. INT’L.L. 142, 158 (2005).
necessary for the international community to ensure timely arrests of outstanding indictees and timely access to evidence if the indictees were to be prosecuted within time frame of the completion strategy.80
4.3. THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA